“A good team has more than one way to win.”
That thought launched the Mackinac Center Legal Foundation in 2009. Control of Michigan’s executive branch, House and Senate had been split between the two major parties for six years after runs of Republican dominance since the early ‘90s. Mackinac Center
research, backed by all the persuasive power we could muster, just wasn’t going to produce much free-market policy if our ideas had to gain the approval of a divided Legislature and the governor.
After considering the political realities, we saw that we could stick with our main strategy of publishing research papers alone, or we could add new capacities.
So, we beefed up our nascent news division, Michigan Capitol Confidential (CapCon), and gave then-Senior Legal Analyst Patrick Wright a new charge: Don’t stop at analysis, but actively litigate on behalf of people harmed by bad policy and government-backed
In other words, we told Wright to make sure our ideas get their day in court even when they get cold-shouldered in the Capitol. (See his profile here).
That strategy produced an impressive string of wins we probably would not have gained by working with lawmakers who were hostile or indifferent to free markets. It also gives us reasons for optimism when elected officials disappoint and legacy media outlets constantly beat the drum for expansive and intrusive government.
Every two years, election outcomes can propel, stop or reverse progress toward free markets. But philosophical change in the courts happens at a slower pace, one or two steps removed from the partisan politics that drive election results.
If you’re not paying close attention, you can miss the important things going our way in the courts. The final chapter of three-term Gov. John Engler’s legacy of judicial appointments has not been written, and this column won’t hold all the good news it produced.
The execrable 1981 Poletown decision (forcible transfer of private property to corporations for economic development) reversed unanimously. Stealth unionization shut down. Freedom of Information Act affirmed (I don’t think we’ve ever lost one of those cases). And most recently, our landmark state supreme court case reviving the nondelegation doctrine and putting an upper bound on a governor’s unilateral emergency powers.
The federal courts are increasingly a bulwark against attacks on First Amendment freedoms of speech and religion. The U.S. Supreme Court’s 2018 Janus decision (ending compulsory support of government unions) is just one example among dozens. Ironically, nearly every legal attack on free speech strengthens the legal framework for exercising free speech when the assailants lose in court.
That didn’t happen by accident. The Federalist Society and others worked over decades to enrich the pool of potential judicial appointments with jurists who interpret constitutions through the plain meaning of their texts. Even left-leaning justices increasingly tip their hats to this approach.
All is not roses. (It never was.) There are no permanent victories. (There never have been.) We will have to work hard to protect what we have and gain what is just. (Did you ever really doubt it?) But we have more than one way to win, and good reasons for optimism.